Docket: IMM-1990-16
Citation:
2016 FC 1237
Toronto, Ontario, November 4, 2016
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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HAO WU
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BINYAN CAO
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This application is for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board [the RPD] dated April 18, 2016 in which it concluded that the Applicants
were not Convention refugees or persons in need of protection and that there
was no credible basis for the Applicants’ claim [the Decision]. This
application is made pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c.27 [the IRPA].
I.
BACKGROUND
[2]
Hao Wu [the Female Applicant] and her husband
Binyan Cao [the Male Applicant] are both 30 year old citizens of China. They
have one daughter. The Applicants claimed refugee protection on the basis of
their practice of Falun Gong. They state that they began to practice Falun Gong
in their home in August 2014. Then, in November of that year, they joined a
practice group. They travelled on holiday to Canada from China on September 23,
2015 and on October 5 their practice group was raided by the Public Security
Bureau [the PSB].
[3]
On October 7 the female Applicant’s mother [the
Mother], who was at the Applicants’ home caring for their daughter, was visited
by the PSB. The PSB searched the house, stated that the Applicants were wanted
for involvement in Falun Gong, and that they could not escape. The Mother told
the PSB that the Applicants were abroad. The PSB visited the Mother twice more but
did not leave any documentation, such as a summons. However they asked the
Mother to have the Applicants contact the PSB on their return to China.
II.
THE DECISION
[4]
The RPD did not accept the Applicants’ evidence
that the PSB did not leave any papers for them. The RPD found that this ran
contrary to country condition documentation which says that authorities issue
summonses in criminal investigations, including those relating to membership in
cults such as the Falun Gong. The RPD acknowledged that the practice of leaving
documents was not always followed, but concluded that the three visits and the
search of the home showed that the PSB was very interested in the Applicants.
In these circumstances the RPD concluded that a summons or warrant would have
been left.
[5]
The RPD also found it implausible that the PSB
visited the Mother three times. The RPD noted that the PSB, given its access to
the Golden Shield database, would have known that the Applicants left the
country prior to their first visit to the Mother. The RPD therefore found that
the PSB would not have asked where the Applicants were and would not have
warned the Mother that they could not escape.
[6]
For these reasons the RPD concluded that the PSB
had never visited the Mother.
[7]
The RPD also concluded that the Applicants had
never participated in a Falun Gong practice group. The RPD found that the Male
Applicants’ testimony regarding safety precautions taken while practicing Falun
Gong was “inconsistent and circular.” He said
that the group did not practice the fifth exercise because they would have had
to remove their shoes and sit on the floor. This would have made it hard to
flee if the session had been raided by the PSB. He also acknowledged that
practicing at home was safe. The RPD did not accept that Applicants would take
the risks associated with group practice when they could practice in safety at
home.
[8]
The Applicants produced a letter from the Mother,
which was not sworn or notarized. It confirmed the information in their Basis
of Claim form and their oral testimony. However, the RPD noted that the Mother
was not called as a witness so it could not assess the credibility of her
statements. The RPD therefore assigned the letter little weight. It is
noteworthy that only the Mother could have given firsthand evidence about the
PSB visits. The testimony from the Applicants on this issue was all hearsay,
based on the Mother’s account of events.
[9]
The Applicants also tendered a letter regarding
their practice of Falun Gong in Canada. The writer indicated that he met the
Applicants while practicing together in a park. He stated that soon after their
arrival they appeared to be skilled genuine practitioners. The RPD assigned
this letter little weight, because the author was not called to testify. The
RPD concluded that the Applicants’ Falun Gong practice in Canada was not
genuine and was a fabrication to support their refugee claim.
[10]
Finally, the RPD concluded that there was no
credible basis for the claim.
III.
DISCUSSION AND CONCLUSIONS
[11]
The RPD concluded that the PSB had never visited
the Mother and had no interest in the Applicants, because they had never
participated in a practice group in China. It also found that the participation
in such a group in Canada was not genuine. In my view the facts are capable of
supporting these conclusions. It was not unreasonable to conclude that the PSB
would have left documentation after a house search and three visits. As well, it
was not unreasonable to doubt whether PSB ever visited. Given its access to the
Golden Shield database the PSB would have known shortly after the raid that the
Applicants’ were not in China. As well the only reason the PSB would be
interested in the Applicants’ was because of their participation in the
practice group. Once the RPD rejected that evidence because the Male Applicant
could not coherently describe why the Applicant’s would take the risks of group
practice, there was no reason for the PSB to have any interest in the
Applicants.
[12]
I have also concluded that the RPD’s rejections
of the letters from the Mother and the Falun Gong practitioner in Canada were
reasonable. The Mother was the only witness capable of giving first hand
evidence about the PSB’s visits and the Toronto practitioner was presumably
available to give evidence. The RPD was entitled to reject their unsworn
letters when the Applicants failed to adduce their testimony.
[13]
It follows that the finding that there was no
credible or trustworthy evidence that could support the Applicants’ claim was
also reasonable.
IV.
CERTIFICATION
[14]
No question was posed for certification.
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